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Just in from St. Paul, the 3-judge panel in MN's U.S. Senate Election Contest have returned to issue a ruling...

In a potentially decisive ruling, a panel of three judges today ordered up to 400 new absentee ballots opened and counted, far fewer than Republican Norm Coleman had sought in his effort to overcome a lead held by DFLer Al Franken.

The ballots appear to include some that Franken had identified as wrongly rejected as well as ballots that Coleman wanted opened in his quest to overcome a 225-vote lead that Franken gained after a recount.

Al Franken's attorney Marc Elias says: "We are pleased...Obviously, the math is going to be very difficult for former Sen. Coleman and his lawyers at this point."

Former Sen. Norm Coleman's attorney Ben Ginsberg admits: "It is pretty much of a longshot with that few ballots being put in play...We are disappointed. But we feel the court is wrong and we will appeal." During a teleconference this afternoon he strongly hinted they plan to appeal all the way to the U.S. Supreme Court, if necessary.

Earlier this week, Republican Sen. John Cornyn, chair of the Republican Senatorial Campaign Committee (RSCC) threatened "WWIII" if the Democrats seat Franken before they appeal the case to the U.S. Supreme Court, if necessary, and even if those appeals take "years."

After reviewing evidence for some 980 previously rejected absentee ballots, as submitted for consideration by both candidates, the judges found that just 400 of them met likely grounds for being opened, counted and added to the final results, though only once they are able to review the actual ballots themselves will they know for certain. They rejected Coleman's plea to use lenient standards for determining which ballots should be counted, holding instead to the strict rule of law, and allowing ballots only for possible counting if they were clearly, legally cast, according to very specific state parameters.

The judges review, they took pains to point out, was exceedingly thorough...

Both campaigns submitted lists of ballots that they said they'd proven were legal and ought to be counted --- and here's what the court thought of them:

"Upon the Court's initial review, it became apparent that the parties' spreadsheets identifying the relevant exhibits were inadequate and unreliable. This required the Court to complete an exhaustive review of all the records and documents submitted by either party throughout the course of the entire trial."

The court thus reviewed:

"...19,181 pages of filings, including pleadings, motions and legal memoranda from the parties; 1,717 individual exhibits admitted into evidence; and testimony from 142 witness examinations, including election officials from 38 Minnesota counties and cities and 69 voters who appeared and testified in defense of their ballots. The trial evidence comprised exhibits offered in three-ring binders that, when stacked, equaled over 21 feet of paper copies."

Don't think they're just complaining about the length --- not that anybody would blame them. The court is clearly establishing the level of diligence they went to in order to decide the questions at hand --- thus guarding themselves against any appeal on procedural grounds.

In reviewing the ballots, the 3-judge panel determined that each one must be individually proven as fully legal before it can be counted, noting: "The Court gave both parties every opportunity to meet this burden. The court did not impose time limits on the length of the election contest nor did it limit either party's opportunity to call witnesses or introduce evidence."

The review of the ballots for possible counting will begin April 7th. After that, the losing candidate will have 10 days to appeal to the MN Supreme Court if he wishes.

* * *

The court noted that, at the start of the contest, Coleman “argued that close to 5,000 absentee ballots should be opened and counted.” Coleman’s claim was voluntarily reduced following prior court rulings requiring “individualized evidence” that each ballot was lawfully cast. By the close of trial Coleman identified 1,360 unopened absentee ballots he contended were lawfully cast. Franken identified 430.

The order does not specify how many of the 400 ballots to be opened and counted came from Franken’s list and how many came from Coleman’s. However, referring to Coleman’s 1,300, the court stated: “This number, however, was contingent upon the court making certain presumptions regarding whether an absentee ballot was cast.” The court proceeded to reject those presumptions, reiterating the individualized standards required before an absentee ballot can be ordered open and counted, to wit: a) that the voter was registered; b) that the individual who cast the absentee ballot did not otherwise vote; c) that the voter submitted an absentee ballot application; d) that the voter completed and signed the absentee ballot envelope; e) that the voter’s absentee ballot was witnessed by a registered MN voter or notary. Since individualized evidence came primarily from the Franken legal team, it seems doubtful that more than a handful of the 400 were reviewed at Coleman’s request.

While the order does not make an express reference to still pending motions, there appears to be little room for doubting that the court did not buy Coleman’s arguments that the court should go back and re-examine all of the absentee ballots previously counted. Indeed, the court stressed that the “recount process was transparent and open to the public.”

The court’s task is to determine which candidate received the most lawfully cast votes. That task will likely be completed on April 7th.

Ernest A. Canning also contributed to this report

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I hate to look to the hated Republicans for how to do something right, but their use of the courts in the Franken/Coleman case is exactly the kind of hard nosed fighting I wish the Dems were more capable of.

The R's know Coleman lost, but their gratuitous, abusive fight isn't over yet because they know how to fight to a fault. The Democrats should've fought like that in 2004 and 2006, and screamed bloody murder in 2000 as well.

There have been so many truly stolen elections where the Dems have just mumbled quietly and stumbled on to other things, afraid of a confrontation. The Jennings/Buchanan case in Sarasota and the Busby/Bilbray race in San Diego come to mind especially. Both were outrageous partisan cheats and needed to be challenged, yet our milktoasty Dems didn't seem to have the stomach for a real fight. Let's hope they do this time.

Harry Reid & company must find the balls to just install Franken next month, and be done with it.

If the the R's want a big fight and filibuster over this, let em get their butts kicked in the news media (such as it is) and in the Senate. And if they put the R dominated Supreme Court on the spot over this, that's great too. Let the R's push this as far as they can, because SCOTUS is another arena where the public would go completely bonkers if Justice Roberts and those weasels Scalia and Thomas tried to mess with this election as they did in 2000. The country is simmering, and that would crank up the progressives and regular Dems like never before.

I'll agree with you that the GOP's "use of the courts in the Franken/Coleman case is exactly the kind of hard nosed fighting I wish the Dems were more capable of". But not up to the point where you recognize that Dems should also bring a "gratuitous, abusive fight".

They should bring a legitimate fight (any, would do, frankly!), as in the elections you mention.

But there's no reason to be either gratuitous or abusive. That's best to the R's, apparently. At least if their embarrassingly brought case in MN is any indication.

"The judges have gone through an amazing amount of material in a relatively short time on this case. Why then does it sound like they are allowing 7 days to count 400 ballots?"

Not to count, to transport.

That time frame was requested by election officials, not the judges, in order to give the officials time to retrieve and transport the ballots from the precincts. And you're not the first person to ask why it should take so long.

I find it amazing- and a little sad- that no one really ever mentions the fact that the people of Minnesota only have one Senator. Beyond the voting on federal bills and all, Senate offices provide a lot of services to their constituents. I hope the Senator they do have has extra staff, at least. And I REALLY hope they seat Franken, but then again Pawlenty has to sign off on it. Not an enviable position for a Republican governor, talk about a rock and a hard place...

The order does not specify how many of the 400 ballots to be opened and counted came from Franken’s list and how many came from Coleman’s.
SNIPSince individualized evidence came primarily from the Franken legal team, it seems doubtful that more than a handful of the 400 were reviewed at Coleman’s request.

According to AP, 150 ballots came from Franken's desired spreadsheet, 125 from Coleman's, 50 were on both candidates' lists and the remainder was on neither's spreadsheets.
400 seemed like an odd number to begin with and now with the AP data, it looks like the Court is just ordering a little from each side.

During the closing oral arguments, Coleman's attorney Joe Friedberg conceded 252 ballots on Franken's spreadsheet should be counted while Franken's attorney alleged that only 6 ballots met the requirements on Coleman's spreadsheet. Therefore, Franken should have had at least 200 (150 from his list and 50 where both agreed) so he has lost 52 potential votes. {Actually, when Franken submitted his final list, his number was 430.}

Thus the question is why did Franken lose so many ?
The Court seems to slam Franken in its comment :"Upon the Court's initial review, it became apparent that the parties' spreadsheets identifying the relevant exhibits were inadequate and unreliable

Further, Coleman would seem to have a lot of ballots that the Judges wish to review. So, why did Franken lose and Coleman gain ? Admittedly, just because the Judges asked to see the ballots doesn't get them counted, but the fact that they discounted Franken's group is surprising. On the other hand, by visually reviewing so many of Coleman's group, they are giving his allegations strong consideration.

Tallying it all up, I still don't see a mathematical way that Coleman can change the outcome ... but Coleman has known that for a long time ... hence his argument on Equal Protection. To use a sports analogy and paying homage to the NCAA Final Four, now that the games has been played and your team lost, complain that a player from the winning was ineligible due to academic problems ... that's Coleman's only hope ... the votes really don't matter, the election is just a game that it doesn't matter how you win it.

Lastly, this Court is not just deciding the 2008 election but future elections. Their collective painstaking efforts are underappreciated. Yet, they have three important tasks to address.
#1. The missing 132 ballots from election night. Do they follow the State Canvassing Board's acceptance or do they follow the precedence established in the Sparks-v-Schwab. In Franken case it was just a small envelope from one precinct that got lost ... what if it actually contained more than enough to overturn the results (and was from an area where Coleman dominated)?
#2. During the course of the trial, a number of witnesses admitted that they did not sign the ballots ... essentially admitting election fraud. In Minnesota (as well as other states), the Republicans have been pushing (unsuccessfully) to require State Identification Cards prior to voting. Will the Court instruct the county prosecutors to evaluate for fraud charges. I have not heard any Republicans chanting for fraud charges (it seems as most of the problem witnesses were Coleman supporters), yet wouldn't that be the best way to encourage people to follow the rules?
#3. Will the Court instruct the Secretary of State to review for possible voter suppression practices? Coleman's team is arguing that some counties processed things differently. The question needs to be asked if any counties did so as to deny voter's rights. For example, Carver County which may have given Coleman his largest margin at 26%, examined witnesses addresses. Although the law requires that the witness be a registered voter, there is not a requirement that the county confirm that (just like they don't require they research the witnesses' age, citizenship, etc.). In fact, the law does not require the witness to provide specific proof of residency.provide the specific proof of residence information Did Carver County suppress voters ? Did they (as other counties did) advise the voter that their ballot was rejected thus allowing the voter to correct the mistake. Interestingly, the largest voter reject rates were in Benton, Crow Wing and Itasca Counties ... all won by Coleman.

Thank you, Brad, for your vigilence on the security and veracity of the vote, approaching the election.

Now that Al Franken has won the election, and that a recount, and a court has found him to be the legitimate winner and senator-elect, when will he ever be seated? The senate needs him, especially on close votes. Moreover, Minnesota voters are deprived of their representation rights by not having him in the senate.
I'd be interested in your response at my site's online poll on which date that he'll finally get seated. http://bluesunited.blogspot.com